Emerging Voices: Engaging with African Human Rights Law

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.]

The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law.

An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women.

The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography.

Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights.  In Centre for Minority Rights Development (Kenya) & Minority Rights Group International on behalf of the Endorois Welfare Council v. Kenya (Endorois), the African Commission found Kenya responsible for violating the rights of the Endorois community.  The government evicted the Endorois from their ancestral land to make way for tourism and ruby mining.

In the Endorois case the Commission consolidated international standards on the rights of indigenous peoples and found that the African Charter upholds these standards.  Drawing on the conclusions of its working group on indigenous populations, the Commission concluded that indigenous groups qualify as “peoples” for the purposes of the Charter.  This conclusion marked a watershed moment for indigenous peoples in Africa, where states have historically denied the existence of indigenous communities.

The Commission adopted cutting-edge standards on the rights of indigenous peoples when determining the Endorois’ rights to property and development.  Citing the 2007 UN Declaration on the Rights of Indigenous Peoples and the jurisprudence of the Inter-American Court of Human Rights (IACHR), the African Commission concluded that traditional possession of land conferred property rights on the Endorois.  In line with the Inter-American system, the Commission read a right to collective property ownership into Article 14 of the African Charter, and it required Kenya to take special measures to protect this right.  The Commission further drew IACHR law into its conclusions on the right to freely dispose of natural resources and the right to development.  Like the IACHR in Case of the Saramaka People v. Suriname, it concluded that a state must consult an indigenous community about, and share the benefits of, exploitation of any resource on ancestral land.

The Commission did more in Endorois than simply incorporate existing standards into the African Charter, however.  In an international first, it found that the right to culture is a collective right. By evicting the Endorois from their ancestral land, it determined, Kenya interfered with the Endorois’ ability to practice their culture as a group.  The Commission took another step beyond existing law on the issue of free, prior and informed consent (FPIC).  The IACHR held in Saramaka that “large-scale development projects with a major impact” trigger a state’s duty to obtain FPIC from an indigenous community.  The Commission in Endorois broadened this requirement, concluding that Kenya had a duty to obtain consent for “any” development or investment project that would have a major impact within the Endorois’ territory.  Presumably, a project of any size could qualify.

Human rights institutions outside the African region have largely failed to engage with innovative, African-made law like the Maputo Protocol and Endorois case.  With the Maputo Protocol, non-African jurisdictions have borrowed from the treaty’s provisions—but they have not credited it.  Consider, for example, instruments that borrow the Maputo Protocol’s ground-breaking prohibition of verbal and economic violence against women.  The Committee on the Rights of the Child (CRC Committee) in 2011 adopted a general comment on violence against children, recognizing verbal abuse as a form of psychological violence.  The CRC Committee does not reference the Maputo Protocol when discussing verbal abuse, although it cites Inter-American and European law elsewhere.  Similarly, the Council of Europe’s 2011 Istanbul Convention on violence against women contains several provisions similar to those of the Maputo Protocol.  But the Convention’s Explanatory Report gives the Maputo Protocol little credit—suggesting, in fact, that the Istanbul Convention’s drafters were responsible for “expand[ing]” the concept of violence against women to include economic violence.

Human rights institutions have likewise failed to engage with the Endorois case.  The IACHR cites Endorois in the 2012 Case of the Kichwa Indigenous People of Sarayaku v. Ecuador when finding that the right to culture is collective.  It does not discuss Endorois further, however, even when analysing the right to development FPIC.  The Special Rapporteur on the rights of indigenous peoples has similarly neglected to engage with Endorois.  The case is not mentioned in any of his annual reports released since 2010, even those focused on extractive industries operating within or near indigenous territories and corporate responsibility with respect to indigenous rights.

Why are non-African human rights institutions so reluctant to engage with African-made human rights law?  The most likely reason is that African human rights institutions are perceived to lack credibility—and non-African institutions are hesitant to cite what they believe to be poor sources of law.

It is true that African institutions have weaknesses.  Many treaties, including the Maputo Protocol, lack monitoring and enforcement mechanisms.  States do not sufficiently fund and staff the African Commission, and the African Commission historically has not made full use of its enforcement powers or publicized its own decisions.  These problems are common to human rights institutions, though—and the situation at African institutions has substantially improved in recent years.  The African Court is hearing cases.  The Commission now holds implementation hearings, and it recently released its first General Comment on the Maputo Protocol.  The African Commission holds regular meetings with the Inter-American and European Courts and with sub-regional human rights bodies.

African institutions, then, do not actually deserve a reputation as poor sources of law.  I would suggest that non-African institutions marginalize African-made human rights law for much the same reason that Western academics have done so.  Historical dynamics between Africa and the global North mean that Africa is assumed to be a follower, not a leader, in human rights—even when it proves otherwise.  It may simply not occur to Western jurists—or to the human rights advocates providing them with amicus briefs and reports—that there is worthwhile African law to which they should refer.

When non-African institutions consistently fail to engage with African-made law, they further damage the credibility of African institutions.  Even more importantly, this lack of engagement impedes the development of human rights law globally.  Human rights norms develop from an exchange of ideas. Omitting African ideas from this exchange means that innovative solutions to human rights problems are lost.